Muhammad Ali, conscientious objection, and the Supreme Court’s struggle to understand “jihad” and “holy war”: The story of Cassius Clay v. United States

You’ve probably heard that in 1971 the Supreme Court reversed Muhammad Ali’s conviction for refusing to be inducted into the Selective Service. But why did it do so? What was the legal issue on which the case turned? And what, if anything, did the criminal case have to do with Ali losing his championship and being precluded from fighting for more than three years?

Here’s a brief summary of the legal machinations. I am deeply indebted to former Georgetown Law professor Tom Krattenmaker, one of Justice John Marshall Harlan’s clerks in the October Term 1970, from whom I learned some of the information below about the Court’s internal deliberations in the Clay case. The remainder of this post is derived from the public record and from the memos available in the Blackmun and Brennan papers.

1. “I shook up the world!”

On February 25, 1964, just nine days after the Beatles’ second appearance on The Ed Sullivan Show, Cassius Clay, Olympic gold medalist at the 1960 Games in Rome, won the world heavyweight boxing title by upsetting Sonny Liston in Miami Beach. Clay was twenty-two years old. Two days later, Clay announced that he was a member of the Nation of Islam, a group with which he had been worshipping since 1962. The following week, Nation of Islam leader Elijah Muhammad announced that Clay would be renamed Muhammad Ali.

2. Ali’s conscientious objection claim: The twists and turns of the administrative process

In February 1966, the Selective Service informed Ali that he was, for the first time, eligible for military service. Ali then applied for a conscientious objector exemption, asserting that he was a pacifist who was religiously opposed to fighting in war. His local draft board rejected the claim, and he appealed to the Kentucky State Appeal Board.

The matter was then referred to the Department of Justice for an advisory recommendation, as the regulations of the time prescribed. The FBI interviewed dozens of persons, including members of Ali’s family and many of his friends, neighbors, and business and religious associates. DOJ then convened a hearing before a designated “hearing officer,” Lawrence Grauman, a well-respected former Kentucky state judge. Judge Grauman concluded that Ali had a sincere religious objection to war in any form, and he recommended that the service grant Ali status as a conscientious objector.

DOJ, however, did not forward Judge Grauman’s report to the appeal board, or even tell Ali what the judge had concluded. Instead, DOJ wrote its own letter to the appeal board, advising that it should reject Ali’s conscientious objector claim. (As Hampton Dellinger explains, DOJ and President Lyndon Johnson were under considerable public pressure to make certain that Ali either served in the military or went to prison.)

As noted below, DOJ suggested three distinct grounds for the board to rule against Ali – a fact that became the basis for the Court’s ultimate disposition. The appeal board promptly denied Ali’s claim, but it did not offer any reasons for its decision.

On April 28, 1967, Ali reported to the Selective Service induction center in Houston, where he was living at the time, but he refused to submit to induction. Ali’s refusal had two major consequences: loss of his boxing license and championship, and criminal prosecution.

3. Stripped of his livelihood . . . and his crown

Mere hours after Ali’s refusal, the chairman of the New York State Athletic Commission, Edwin Dooley, announced that the Commission had withdrawn Ali’s license to fight on the ground that licensing a man who refused induction was “detrimental to the best interests of boxing”; the commission also withdrew its recognition of Ali as world heavyweight champion. Within days, every important state boxing commission in the nation had followed suit, effectively preventing Ali from fighting in the United States.

Although it might seem very surprising now, much of the public at the time welcomed the commission’s decision. For instance, as Dellinger recounts, white sports writers almost universally condemned Ali (with the principal, noteworthy exceptions of Howard Cosell, Bob Lipsyte, and Larry Merchant). A bitter and dismissive editorial in Sports Illustrated in May 1967 was, unfortunately, representative of the way that many white Americans viewed Ali and the Nation of Islam:

Without his gloves on, Ali is just another demagogue and an apologist for his so-called religion, and his views on Vietnam don’t deserve rebuttal. . . . It is, of course, purposeless to dwell on the good Ali could have done for black and white alike if he hadn’t aligned himself with the Muslims. But if indeed he does go to jail, Ali can achieve the martyrdom he seeks only if it is shown that he is sacrificing himself for the sake of a principle worthy of the name.

4. Prosecution for draft-dodging

Meanwhile, a grand jury indicted Ali for draft evasion; and on June 20, 1967, a jury in the U.S. District Court for the Southern District of Texas found Ali guilty after deliberating for twenty-one minutes. Federal judge Joe Ingraham sentenced Ali to five years in prison and a $10,000 fine. The judge also required Ali to surrender his passport pending appeal . . . which meant that Ali could not fight overseas, either.

Ali appealed to the U.S. Court of Appeals for the Fifth Circuit, which affirmed his conviction. Ali then petitioned the Supreme Court for certiorari. The Justices reportedly voted to deny cert.; before the Court issued the decree, however, Solicitor General Erwin Griswold informed the Court that the defendants in a number of pending cases, including Ali’s, had been the subject of FBI wiretapping that might have been unconstitutional under the Court’s then-recent Fourth Amendment decisions. The Court remanded the cases back to the trial courts to decide whether the convictions were tainted by virtue of unlawful wiretaps. In Ali’s case, the district judge subsequently decided that the surveillance – Ali was overheard in taps of phones belonging to Elijah Muhammad and Martin Luther King, Jr. – had no bearing on Ali’s conviction. The court of appeals again affirmed, in the summer of 1970. Ali once more asked the Court to review his conviction.

5. Ali’s civil suit against the New York State Athletic Commission

While Ali’s criminal appeal was pending, he decided to sue the New York State Athletic Commission, alleging that it had unconstitutionally suspended his boxing license. Ali’s complaint at first invoked the Due Process Clause and the Eighth Amendment’s prohibition on cruel and unusual punishment. U.S. District Judge Marvin Frankel dismissed that complaint. In a conspicuous footnote, however, the judge pointedly suggested that Ali might have a much stronger claim under the Equal Protection Clause, if only he could allege facts to support his vague and general allegation that “on information and belief, defendants have on several occasions licensed professional boxers notwithstanding evidence that such individuals would be far more likely to be detrimental to the interests of boxing than plaintiff.” Frankel granted Ali leave to re-plead the equal protection claim.

Ali’s lawyers took the cue and amended the complaint accordingly. They alleged that the commission had “on other occasions licensed professional boxers who had been convicted of crimes involving moral turpitude,” including Rocky Graziano, who was licensed despite the fact that he had been twice convicted of petty larceny and had been court-martialed while serving in the United States Army and convicted of being absent without leave and of disobeying orders, and Sonny Liston himself, whom the commission recognized as heavyweight champion (until Clay knocked him out in Lewiston) despite having been convicted of armed robbery and of assault with intent to kill. Discovery in the case then uncovered that the commission had, in fact, granted, renewed or reinstated boxing licenses to applicants who had been convicted of one or more felonies, misdemeanors or military offenses involving moral turpitude on at least 244 occasions – including for second-degree murder, burglary, armed robbery, extortion, grand larceny, rape, sodomy, aggravated assault and battery, embezzlement, arson, fraud, impairing the morals of minors, and desertion from the Armed Forces.

That showing made all the difference. On December 24, 1969, Judge Walter Mansfield, to whom the case had been reassigned, wrote as follows:

If the Commission in the present case had denied licenses to all applicants convicted of crimes or military offenses, plaintiff would have no valid basis for demanding that a license be issued to him. But the action of the Commission in denying him a license because of his refusal to serve in the Armed Forces while granting licenses to hundreds of other applicants convicted of other crimes and military offenses involving moral turpitude appears on its face to be an intentional, arbitrary and unreasonable discrimination against plaintiff, not the even-handed administration of the law which the Fourteenth Amendment requires.

Noting that the commission’s decision had cost Ali the ability to earn a living in his chosen trade in the prime of his career, from ages twenty-five to twenty-eight – the judge assumed he had only “a limited number of years remaining in which he can meet the rigorous physical standards essential to engaging in such activity”—Judge Mansfield concluded that “[i]t is clear that unless preliminary relief is granted, he will suffer irreparable injury. The harm to Ali cannot be measured in damages.” The judge therefore preliminarily enjoined the Commission from denying Ali a license to fight.

6. Comeback! . . . and defeat

Judge Mansfield’s injunction paved the way for Ali to resume boxing. After defeating Jerry Quarry and Oscar Bonavena in late 1970, Ali prepared to fight Joe Frazier, who held the heavyweight crown Ali had been forced to relinquish. The aptly titled “Fight of the Century” on March 8, 1971, at Madison Square Garden, was the first time that two undefeated boxers had ever fought for the heavyweight title. The landmark fight went fifteen rounds – in the last of which Ali was knocked down for the first time in his career – before Frazier won on a close but unanimous decision.

7. The Supreme Court readies to affirm Ali’s conviction

Two months before the Ali-Frazier fight, the Supreme Court surprisingly granted certiorari to hear Ali’s appeal of his criminal conviction, reportedly at the urging of Justice William Brennan. At the time, few of the other Justices were sympathetic to Ali’s claim.

The Court heard oral argument on April 19, just six weeks after Frazier had beaten Ali. (You can listen to the argument here; but I should warn you: It’s much less scintillating than the March fight was.)

In earlier cases, the Court had held that a refusal of the government to classify the individual as a conscientious objector could be a defense to his failure to submit to induction, but only if there were “no basis in fact” for the government’s decision. The statutory test for conscientious objector status was whether the individual, “by reason of religious training and belief, is conscientiously opposed to participation in war in any form.” The critical question in Ali’s case before the Court turned on the final condition: that the religious objection must be to participation in war “in any form.” In effect, this meant that pacifists, such as Quakers, were entitled to an exemption, but that persons conscientiously opposed to the Vietnam War, in particular – including many Catholics who concluded that such involvement was immoral according to religious “Just War” doctrine – were not exempt. On March 8, 1971 – the very morning of the Ali/Frazier fight – the Court had affirmed the constitutionality of this congressionally drawn distinction, rejecting a First Amendment challenge brought by an individual, Guy Gillette, who had a “selective” religious objection to fighting the war in Vietnam.

In Ali’s case, then, the Court confronted this question: Was there any “basis in fact” for the appeal board to conclude that Ali’s religious objection to participation in war was selective (for example, limited to the Vietnam War), rather than categorical?

At conference after the oral arguments in April, five of the eight participating Justices – Chief Justice Warren Burger and Justices Hugo Black, John Marshall Harlan, Byron White and Harry Blackmun – voted to affirm the conviction. Justices William Douglas, William Brennan, and Potter Stewart voted to reverse. Justice Thurgood Marshall was recused because he had been Solicitor General in an earlier phase of the case.

The tentative majority disposition was hardly secure, however: According to Justice Blackmun’s notes, Justice Black told the Conference that he thought the question was “close”; and Justice Harlan remarked that Ali had been “badly advised legally” and that his argument was “confused.” (It’s possible that Justice Blackmun, too, was on the fence: His law clerk, Robert E. Gooding, had recommended reversal; and within his chambers Blackmun explained that his vote would depend upon his response to the oral argument.)

The Justices in this tentative majority apparently accepted the government’s argument that there was at least “some basis in fact” for the appeals board to have found that Ali’s objection was selective, because he acknowledged he would be willing to fight for Islam in a “religious” or “holy” war. According to Solicitor General Griswold’s brief, “[t]here was ample evidence tending to show that [Ali] would not object to fighting with real weapons in a defensive war on behalf of Muslims. It was, therefore, not unreasonable for the Selective Service System to conclude that his was not a general scruple against participation in war, but rather a refusal to fight in wars on the side of white persons. Such a belief is consonant with the creed of his Muslim sect as expressed in the tracts that petitioner placed in the record as the sources of his beliefs.” Indeed, Ali’s own reply brief even conceded that his “own testimony and statements assert a clear and unambiguous opposition to participation in all wars except theocratic wars or wars in which he is commanded to fight by his God.”

8. Justice Harlan’s dramatic reversal

The Chief Justice assigned Justice Harlan to write the majority opinion, and one of Justice Harlan’s law clerks began drafting it. Another of Harlan’s clerks, Thomas Krattenmaker, who was himself busy at work on the majority opinion in another case involving draft protest – Cohen v. California (the “Fuck the Draft” jacket-in-the-courthouse case) – was troubled by the Ali case, and he began to carefully review one of the canonical Nation of Islam texts that Ali had introduced as establishing the basis for his religious objection: Message to the Blackman in America, written by Elijah Muhammad, leader of the Nation of Islam. After reading Blackman and other Nation of Islam texts, Krattenmaker developed doubts about the nature of the so-called “holy war” in which Ali conceded he would be willing to participate.

Krattenmaker came to understand that the prospect of such a “holy war” was entirely abstract and hypothetical – contingent upon future events and a divine decree that were unlikely ever to occur. Ali’s case thus appeared to be analogous to a 1955 case, Sicurella v. United States, involving a Jehovah’s Witness, in which the government had introduced church texts depicting Witnesses as “extolling the ancient wars of the Israelites and ready to engage in a ‘theocratic war’ if Jehovah so commands them.” “[G]ranting that the Jehovah’s Witnesses will fight at Armageddon,” the Court wrote in Sicurella, “we do not feel this is enough. . . . As to theocratic war, petitioner’s willingness to fight on the orders of Jehovah is tempered by the fact that, so far as we know, their history records no such command since Biblical times and their theology does not appear to contemplate one in the future.” Ali’s willingness to fight in a war only if commanded to do so by God made his case analogous to Sicarella’s, Krattenmaker reasoned: Ali was, as a practical matter, religiously opposed to fighting in any wars that might actually occur.

Krattenmaker conveyed his doubts about the proposed affirmance to his co-clerk, who agreed. The two of them then inveighed with Justice Harlan. Harlan was dubious at first, but agreed to read the pertinent excerpts from Message to the Blackman (or to listen to someone else read them, anyway: the Justice’s eyesight was rapidly failing at the time). After doing so, Harlan concluded that Krattenmaker was right.

Harlan then began to draft an opinion that would result in reversal of Ali’s conviction. His fellow Justices apparently were unaware of this development until Harlan sprung it upon them at the beginning of June, just four or so weeks before the end of a very busy and difficult Term! A few days later, on June 10, Harlan circulated his draft opinion, with a contrite cover note (dated the 9th) explaining that his work on the opinion he was assigned to write “brought me serious misgivings.” “I regret very much,” Harlan wrote, “that my switch in vote necessarily comes at the inopportune time of the closing days of the Term, and that, with Brother Marshall out of the case, it will result in a 4-4 tie as the vote now stands. But seeing the case as I do, I cannot in good conscience vote otherwise.”

Harlan’s draft opinion included a fascinating, extended exegesis on the teachings of the Nation of Islam. According to those teachings, Harlan wrote, in the beginning all people were black, but the white race was later created at the instigation of an evil deity named Yakub, and was given 6000 years – a period that ended in 1914 – to rule the other races. The day of judgment of the ruling white race was expected to occur in the mid-1960s, and would consist of a battle of Armageddon, a physical war not between the races, but between Allah and the white race – a struggle in which Muslims would not participate physically – ending in Allah’s destruction of the white race and the establishment of earthly paradise for Muslims.

“The Message teaches that Islam is the religion of peace,” wrote Justice Harlan, “and that war-making is the habit of the race of devils created by Yakub.”

But what about the Islamic notion of jihad, or “holy war”? Wouldn’t Muslims within the Nation of Islam be willing to fight in such a battle?

Justice Douglas, for one, thought that they would. Back on April 22, 1971, shortly after oral argument, Douglas had circulated to the other Justices a draft separate opinion with an exposition on jihad as he understood it. (“My travels in Islam,” he wrote in a cover memo, “got me interested in the Koran; and as a result of this hobby I send this memo.”) Douglas eventually issued a version of that separate opinion as a concurrence, in which he opined that “[t]he Koran defines jihad as an injunction to the believers to war against nonbelievers.” He quoted from the Sale edition of the Koran, which first appeared in England in 1734:

Thus, God propoundeth unto men their examples. When ye encounter the unbelievers, strike off their heads, until ye have made a great slaughter among them; and bind them in bonds; and either give them a free dismission afterwards, or exact a ransom; until the war shall have laid down its arms. This shall ye do.

Douglas noted that “[t]he last attempt to use the jihad as a significant force was made in 1914 by the Ottoman sultan; but it failed, and the jihad has fallen into disuse.” Even so, he explained, it “is the Moslem’s counterpart of the ‘just’ war as it has been known in the West,” and something in which Moslems have a “duty to participate.”

Justice Douglas, then, actually agreed with the Burger-led majority that Ali’s objection was selective – that Ali was willing to fight in a jihad. Douglas, however, alone among the Justices, believed that Congress’s distinction between comprehensive and selective (“unjust war”) religious objections was a violation of the Free Exercise Clause, and that therefore sincere religious objectors to the Vietnam War were constitutionally entitled to an exemption even if they did not object to war “in any form.” Therefore he was prepared to vote for Ali, but for reasons that no other Justice accepted.

In his own draft opinion, Justice Harlan in effect explained that Justice Douglas was wrong to conflate all variants of Islam. Harlan noted the testimony of a minister of the Nation of Islam in Ali’s case that the “orthodox Islamic idea of jihad” was of “no use to use today and . . . we don’t follow this at all here.” Ali affirmed his agreement with this testimony, wrote Harlan. [Harlan was not the first person within the Court to identify Douglas’s presumptuous mistake. On April 26, Justice Blackmun’s clerk Robert Gooding wrote to the Justice that “[w]ith all due respect to Justice Douglas, I fear that by circulating [his] memo he is simply trying to impress all of us with his knowledge of eastern religions.” Gooding pointed out that Ali was not a member of the Muslim religion Douglas was describing, “and does not profess a belief in the Koran.” Thus it was “not at all fair to impute a . . . belief in jihad” to Ali.]

To be sure, as Harlan acknowledged, Message to the Blackman in America did contain stray references to “Holy War.” The text did not, however, offer much “substantive content with respect to Holy War,” wrote Harlan; instead, it merely “reserve[d] the question of the appropriate course of conduct in the event divine marching orders are received.”

There was one more hurdle for Harlan to deal with: The hearing officer had asked Ali whether he would fight in such a holy war if commanded to do so by Allah, speaking through Elijah Muhammad, and Ali had replied that he was sure Muhammad would issue no such command, but that “if he advised me to I would.”

According to Harlan, this concession did not disqualify Ali under the statutory “war in any form” standard: “In the absence of anything to cast doubt on this testimony,” Harlan wrote, “and in view of the imminence of Armageddon in the [Nation of Islam] view” – recall Harlan’s understanding that Allah, not Muslims, would fight against whites in that hypothetical battle, according to Nation of Islam teachings – “we think petitioner’s willingness to fight in holy wars does not render him ineligible for conscientious-objector status under the construction of the statute in Sicarella.”

Justice Harlan’s about-face, which might have conferred a presumptive right to exemption upon all members of the Nation of Islam who shared Ali’s beliefs, reportedly outraged Chief Justice Burger, who complained to one of his law clerks that Harlan had become an “apologist for the Black Muslims.”

As Justice Harlan acknowledged, his switched vote meant that the Court was divided four to four. If none of the other Justices in the original majority joined his opinion, the Court would then have affirmed Ali’s conviction without an opinion – in which case Ali would have begun to serve time in federal prison, just after he had lost his comeback match to Joe Frazier, and without any assurance that a majority of the nine Justices thought his conviction was lawful! Nor would the Court explain itself in issuing that shocking injunction. Not an ideal resolution, to say the least. [As it happens, it is possible that at least one Justice was prepared to switch his vote. On June 14, Justice Blackmun’s law clerk, Robert Gooding, wrote the Justice a memo explaining that he agreed with the basic gist of Justice Harlan’s draft. Harlan’s second draft, circulated the next day, reflected changes consistent with those suggested in Gooding’s memo to Blackmun. The available record, however, does not reflect whether Gooding persuaded Blackmun to change his vote, nor whether Harlan was aware of the suggestions percolating in Blackmun’s chambers.]

9. Justice Stewart’s minimalist resolution

Justice Stewart was not sure that Harlan’s draft would attract another vote, and he was not pleased about the prospect of a four-four affirmance. Within hours of Harlan’s circulation on June 10, he wrote to his fellow Justices that he agreed with Harlan’s memo “and would gladly join it should it become an opinion of the Court.” He added, however, that there was also a narrower ground for reversal, one that Justice Brennan had been urging based upon a different aspect of the 1955 Sicurella decision. Stewart promised to “try my hand at writing a few words on that subject” over the forthcoming weekend.

The following week, Stewart circulated his own draft opinion, which would reverse Ali’s conviction without the need to resolve the “merits” of Justice Harlan’s conclusion that Ali had a sincere religious objection to war “in any form.” (Harlan’s own draft included an argument similar to Stewart’s and Brennan’s; but Stewart’s draft navigated a way to avoid the merits question altogether.)

Stewart’s draft focused on the fact that, in the administrative proceedings back in 1966-67, the Department of Justice had recommended that the appeal board deny Ali’s application not only because he was allegedly willing to fight in a hypothetical “holy war,” but also because, according to DOJ, Ali’s objection was more “political and racial” than religious (even under the Court’s very broad definition of what counted as “religious”). DOJ also intimated to the appeal board that Ali’s objection might be a function of convenience rather than sincerity, because he did not assert his conscientious-objector claim “until military service became imminent.” In the Supreme Court, however, the Solicitor General had disclaimed both of these other two bases for sustaining the conviction (i.e., that the objection was insincere and/or merely political and “racial”); and the Court itself, in its eventual published opinion, held that “the Department was simply wrong as a matter of law in advising that the petitioner’s beliefs were not religiously based and were not sincerely held.”

Because the appeal board denied Ali’s application without explanation, there was no way to tell whether it had relied on one or both of the inadequate grounds, rather than on the theory, arguably supported by a “basis in fact,” that Ali was willing to fight in a holy war. This uncertainty about the board’s rationale was problematic, Stewart wrote, because the Court had already held, in the 1955 Sicurella case, that when DOJ makes an “error of law . . . to which the Appeal Board might naturally look for guidance on such questions,” that error “must vitiate the entire proceedings at least where it is not clear that the Board relied on some legitimate ground.”

Justice Stewart’s proposed draft broke the Justices’ logjam: On Monday, June 28, 1971, the Court issued its decision in Clay v. United States, holding in a per curiam opinion (drafted by Stewart) that “[h]ere, where it is impossible to determine on exactly which grounds the Appeal Board decided, the integrity of the Selective Service System demands, at least, that the Government not recommend illegal grounds.” The judgment of reversal was unanimous. (Justices Harlan and Douglas concurred in the judgment.)

By issuing a decision that was specific to the facts of Ali’s administrative proceedings, the Court thereby avoided the need to ever decide whether the theoretical prospect of participating in a “holy war” against Islam meant that members of the Nation of Islam were, or were not, “conscientiously opposed to participation in war in any form.”

* * * *

Two years later, on June 30, 1973, the United States formally ended the draft and began to rely upon an all-volunteer army. Although the Court’s decision did not preclude the Selective Service from revisiting the question of Ali’s conscientious objector status, the agency did not bother to do so. On January 28, 1974, Ali defeated Joe Frazier in a twelve-round rematch at Madison Square Garden. And on October 30, 1974, Ali stunned George Foreman with an eighth-round knock-out in Kinshasa, Zaire (the famous “Rumble in the Jungle”), thereby winning back his heavyweight title, seven-and-a-half years after it was unlawfully taken from him.